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offence of wilfully and maliciously tearing, spoiling, cutting, burning or defacing the garments or cloths of any person or persons, which is in like manner made a felony, though within the benefit of clergy * If the legislature had no given repeated and deliberate proofs of a different sentiment, the pu. nishment of death would seem by no means applicable to delinquencies which are merely in the nature of civil trespasses.
It is felony without benefit of clergy, to remain one month in the realm, being an Egyptian; or to be found in the fellowship of Egyptians ; and Sir M. Hale takes notice, that thirteen persons were executed for this offence in one assize at Bury. It is equally capital, if any person shall wilfully break any tools used in the woollen manufacture, not having the consent of the owner t; or shall maliciously cut in pieces or destroy any manufacture of linen cloth or yarn, either when exposed to bleach, or dry $; or shall wander, being a mariner, without the testimonial of justices ß, or shall knowingly receive, relieve, or maintain, Priests or Jesuits ||; or shall, dur. ing the term of transportation to the British colonies, voluntarily go into any part of the French or Spanish dominions ; or shall be found in disguise in the act of passing with prohibited or uncustomed goods; or shall forcibly hinder, obstruct, assault, oppose, or resist, any of the officers of the customs, or excise, in the seizure of any such goods**
* 6 Geo. 1. c. 23. which is intitled; “ An act for the further preventing robbery, burglary, and other felonies, and for the more effectual transportation of felons.” The clause relative to clothes is to be found in the last section. † 12 Geo. I. c. 31.
I 4 Geo. III. c. 37. $ 16.
§ 39 Eliz. c. 13. § 4.
** 19 Geo. II. c. 34.
It would be easy to collect considerable additions to this dismal catalogue; but the instances already given, form a sufficient foundation for the following remark.
· Positive laws are those, which do not flow from the general obligations of morality and the general condition of human nature; but have their reason and utility, in reference to the temporary advantage of that particular community for which they are enacted. Every law therefore, which comes under this description, ought to bave a limited duration; and should not be suffered to remain a burthen upon the people, when the grievance, for which it was framed, hath ceased, and is forgotten.
The accumulation of sanguinary laws is the worst distemper of a State. Let it not be supposed, that the extirpation of mankind is the chief object of legislation. Nous lisons de quelques empereurs de Maroc, qui uniquement, pour faire parade de leur addresse, enlevent d'un seul coup de sabre en se remettant en selle, la léte de leur ecuyer.
When by Stat. Jac. I. it was made felony for any person infected with the plague, to go abroad or converse with company; it was impossible to object to a severity, which though fatal to individuals, was essential to the general safety of the people. But when in the 18th. century it is made a capital crime to cut down a cherry-tree in an orchard ; the thinking part of mankind must listen to such a law with irreverence and horror: for they know that the evil to be prevented, is by no means adequate to the violence of the preventive.
Under this head it may be observed, that laws very severe in their nature, but originally not inconsistent with sound policy, are sometimes suffered to retain their force, long after their subject-matter bath ceased to be of any consequence to the
interests of society. Such for instance, is that statute*, under which it is at this day a capital offence to give corn, cattle, or other consideration, to the Scots for protection. It would be easy to produce many other instances equally exceptionable. And this is the necessary consequence of having given an unlimited existence to laws made for the correction of present evils. In the promulgation of such laws it should be observed, that they are founded in the momentary exigencies of society, and resembled that necessity, which in cases of extreme samine, obliges men to eat each other. They cease to eat men, in such ses, as soon as bread can be obtained t.
It is a political truth, that, when the laws are good, those, who deserre punishment, rarely escape the arm of Justice.
“Cur tamen hos Tu
* Stat. 43 Eliz. c. 13.
The same idea is finely expressed by our own poet, who seems to have possessed the singular power of turning his genius to every train of ideas, of which the mind of man can be capable :
" Tremble thou wretch
Hast practis'd on man's life.” § Juv. Sat. xiii. ver. 193.
It cannot have escaped the notice of my readers, that the ideas, which in the course of this inquiry I have endeavoured to establish as principles of penal law, have not been stated as abstract propositions ; but rather as argumentative inferences, interwoven with, and to be collected from observations on the penal systems of different Governments. My attention hath at the same time been most particularly turned to the English code of laws; and many melancholy instances have concurred to show that the reformation of that code is become an important and almost necessary work. I know, that many will conceive such a reformation to be impracticable; I know, that the minds of some will startle at the idea of innovations; I know, that others will shrink from the supposed difficulty:Yet I am convinced, that the undertaking is neither impracticable, unsafe, nor difficult *.
Under this conviction it hath been my object, by frequent appeals to reason and benevolence, to engage those sensible and good minds, which are ever ready to sympathize with him who pleads the cause of humanity. To excite the attention
* The British constitution is the pride of every Briton: to sea care, to fortify, to perpetuate that excellent system of government, is the business of every Briton. It may De pardonable therefore in mc to point out what I conceive to be the best method of ac. complishing the reformation in question ; leaving the execution of that method or the adoption of a better plan, to those who lic under the more immediate engagements both of interest and duty.
The learned observer on the ancient statutes was certainly well founded in suggesting that a reformation of the English law can never be effectually carried on, without the assistance of able law. yers, not members of the legislature. With such assistance it might perhaps be easy to frame separate declaratory statutes rela.
66 For no
of that more numerous class of men, who are distracted by the cares, heated by the action, or dissipated by the pleasures of the world, may be wished, but is not to be expected; though nothing is more certain than that the subject of these enquiries deserves the attention of every man amongst us. rank, no elevation in life, no conduct how circumspect soever, ought to induce any reasonable man to conclude, that the
penal system doth not, nor possibly can concern him *.” A very slight reflection, on the numberless unforeseen events which a day may bring forth, will be sufficient to show that we are all liable to the imputation of guilt; and consequently all interested, not only in the protection of innocence, but in the assignment to every particular offence, of the smallest punishment compatible with the safety of society.
It must ever happen, that many private members of the state will regard the imperfections of the laws with indifference till they experience their effects. What in such men must be attributed to inability or neglect only, may in others, perhaps, deserve the appellation of a breach of trust. Be this as it may; it highly concerns the safety of every individual, as well as the general morality and happiness of the people, that the inno
tive to cach class of crimes, comprehending all the descriptions and degrees of each crime, with their proportionate punishments. Eyery such declaratory statute should be attended by a supplemen. tal bill, repealing all prior provisions relative to the class of crimes, in that statute contained. It seems superfluous to point out the many colateral good effects which might arise from this method of secking the end proposed.
The repeal of particular statutes, without such preparatory caution will be found a mere palliative remedy; which may tend indeed to awake the symptoms of the disease, but from which a radical cure cannot be expected.
Foster's Crown Law, Pref. p. 3.